"The parties have agreed that the custody of the minor son Master Shivam shall remain with the mother, petitioner No.1 who being the natural mother is also the guardian of the son Master Shivam as per law laid down by the Supreme Court of India. It is, however, agreed that the father petitioner shall have right of

2 visitation only to the extent that the child Master Shivam shall be with the father, petitioner No.2, once in a fortnight from 10 AM to 6.30 PM on a Saturday. Petitioner No.2 shall collect the child Master Shivam from WZ-64, 2nd Floor Shiv Nagar Lane No.4, New Delhi-58 at 10 AM on a Saturday where the child is with his mother. And on the same day at by 6.30 PM, the petitioner No.2 would leave the child back at the same place with the mother i.e. petitioner No.1 and in case he does not do so petitioner No.1 the mother shall collect the child from petitioner No.2 on the same day. Both parties undertake before this Hon'ble Court that they would not create any obstruction in implementation of this arrangement.

The petitioner No.1 shall take adequate care of the child in respect of health, education etc., at her own cost. In case the petitioner No.1 changes her address or takes the child outside Delhi, she shall keep petitioner No.2 informed one week in advance about the address and telephone nos. and the place where the child would be staying with the mother, to enable the petitioner No.2 to remain in touch with the child.

The petitioner No.1 has received all her Stridhan and other valuables, articles and other possessions, and nothing remains due to her from the petitioner No.2. The petitioner No.1 and the child Shivam has no claim to any property or financial commitment from petitioner No.2 and all her claims are settled fully and finally".

5. Thereafter the respondent-wife filed

applications dated 07.11.06 and 9.05.08 and the

3 appellant-husband also filed applications dated

17.11.07 and 16.02.09 under Section 26 of the

Act seeking modification of those terms and

conditions about the custody of the child.

6. The respondent was basing her claim on the fact

that she wanted to take the child with her to

Australia where she was employed for gain with a

request to revoke the visitation rights granted

to the appellant for meeting the child. This she

felt will be conducive to the paramount interest

and welfare of the child. The appellant on the

other hand sought permanent custody of the child

under the changed circumstances alleging that it

is not in the interest of the child to leave

India permanently.

7. The Trial Court vide its order dated 06.04.09

took notice of the fact that in the joint

petition of divorce, parties voluntarily agreed

that the custody of the child shall remain with

the mother and father shall have only visiting

rights, in the manner indicated in the mutual

divorce decree. The Court modified the terms and

4 conditions of the custody and visitation rights

of the appellant about the minor child. By its

order the Trial Court had allowed the respondent

to take the child with her to Australia but also

directed her to bring the child back to India

for allowing the father visitation rights twice

in a year i.e. for two terms - between 18th of

December to 26th of January and then from 26th of

June to 11th of July.

8. Being aggrieved by that order of the Trial

Court, the appellant appealed to the High Court.

It was argued by the appellant since no decree

was passed by the Court while granting mutual

divorce, an application under Section 26 of the

Act does not lie and in the absence of specific

provision in the decree regarding the custody

and visitation rights of the child, the Trial

Court has no jurisdiction to entertain the

petition afresh after passing of the decree.

9. The High Court took into consideration the

provisions of Section 26 of the Act and was of

the view that the aforesaid provision is

5 intended to enable the Court to pass suitable

orders from time to time to protect the interest

of minor children. However, the High Court held

that after the final order is passed in original

petition of divorce for the custody of the minor

child, the other party cannot file any number of

fresh petitions ignoring the earlier order

passed by the Court.

10. The Court took into consideration that even if

the terms and conditions regarding the custody

and visitation rights of the child are not

specifically contained in the decree, they do

form part of the petition seeking divorce by

mutual consent. It was of the view that absence

of the terms and conditions in the decree does

not disentitle the respondent to file an

application under Section 26 of the Act seeking

revocation of the visitation rights of the

appellant.

11. It is important to mention here that the learned

Judge of the High Court had personally

interviewed the child who was about 7 years old

6 to ascertain his wishes. The child in

categorical terms expressed his desire to be in

the custody and guardianship of his mother, the

respondent. The child appeared to be quite

intelligent. The child was specifically asked if

he wanted to live with his father in India but

he unequivocally refused to go with or stay with

him. He made it clear in his expression that he

was happy with his mother and maternal

grandmother and desired only to live with his

mother. The aforesaid procedure was also

followed by the learned Trial Court and it was

also of the same view after talking with the

child.

12. Being aggrieved with the judgment of the High

Court the appellant has approached this Court

and hence this appeal by way of Special Leave

Petition.

13. We have also talked with the child in our

chambers in the absence of his parents. We

found him to be quite intelligent and

7 discerning. The child is in school and from

the behaviour of the child, we could make out

that he is well behaved and that he is

receiving proper education.

14. The child categorically stated that he wants

to stay with his mother. It appears to us

that the child is about 8-10 years of age and

is in a very formative and impressionable

stage in his life. The welfare of the child

is of paramount importance in matters

relating to child custody and this Court has

held that welfare of the child may have a

primacy even over statutory provisions [See

Mausami Moitra Ganguli vs. Jayant Ganguli -

(2008) 7 SCC 673, para 19, page 678]. We have

considered this matter in all its aspects.

15. The argument of the learned counsel for the

appellant, that in view of the provisions of

Section 26 of the Act, the order of custody

of the child and the visitation rights of the

8 appellant cannot be changed as they are not

reflected in the decree of mutual divorce, is

far too hyper technical an objection to be

considered seriously in a custody proceeding.

A child is not a chattel nor is he/she an

article of personal property to be shared in

equal halves.

16. In a matter relating to custody of a child,

this Court must remember that it is dealing

with a very sensitive issue in considering

the nature of care and affection that a child

requires in the growing stages of his or her

life. That is why custody orders are always

considered interlocutory orders and by the

nature of such proceedings custody orders

cannot be made rigid and final. They are

capable of being altered and moulded keeping

in mind the needs of the child.

17. In Rosy Jacob vs. Jacob A Chakramakkal -

[(1973) 1 SCC 840], a three judge Bench of

9 this Court held that all orders relating to

custody of minors were considered to be

temporary orders. The learned judges made it

clear that with the passage of time, the

Court is entitled to modify the order in the

interest of the minor child. The Court went

to the extent of saying that even if orders

are based on consent, those orders can also

be varied if the welfare of the child so

demands.

18. The aforesaid principle has again been

followed in Dhanwanti Joshi vs. Madhav Unde -

[(1998) 1 SCC 112].

19. Even though the aforesaid principles have

been laid down in proceedings under the

Guardians and Wards Act, 1890, these

principles are equally applicable in dealing

with the custody of a child under Section 26

of the Act since in both the situations two

things are common; the first, being orders

relating to custody of a growing child and

10 secondly, the paramount consideration of the

welfare of the child. Such considerations are

never static nor can they be squeezed in a

strait jacket. Therefore, each case has to be

dealt with on the basis of its peculiar

facts.

20. In this connection, the principles laid down by

this Court in Gaurav Nagpal vs. Sumedha Nagpal

reported in (2009) 1 SCC 42 are very pertinent.

Those principles in paragraphs 42 and 43 are set

out below:

"42. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible.

43. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the "welfare of the child" and not rights of the parents under a statute for the time being in force".

The Hon’ble Sri Justice B.Chandra Kumar Appeal Suit No.144 of 2012 Dated 9th August, 2012Judgment: The appellant filed this appeal challenging Order, dated27-01-2012, passed by the learned Senior Civil Judge, Darsi, in CFR.No.90 of 2012, refusing to register the suit filed by him on the ground that the same is barred by limitation . The plaintiff filed the suit for specific performance basing on agreement of sale, dated 13-11-2008. As per the terms and conditions of the agreement of sale, the balance amount of Rs.4 lakhs out of the total sale price of Rs.9 lakhs was to be paid within two months from the date of expiry of the limitation of the said agreement of sale. The case of the appellant is that though he had been requesting the respondent to receive the balance sale consideration and register the sale deed in his favour, the respondent did not come forward; that therefore, he got issued a legal notice to the respondent on12-10-2011; that the respondent acknowled…

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The 1st respondent herein filed O.S.No.101 of 2011 in the Court of III
Additional District Judge, Tirupati against the appellants and respondents 2 to
5 herein, for the relief of perpetual injunction in respect of the suit schedule
property, a hotel at Srikalahasti, Chittoor District. He pleaded that the land
on which the hotel was constructed was owned by the appellants and respondents 2
and 3, and his wife by name Saroja, and all of them gave the property on lease
to M/s. Swarna Restaurant Private Limited, 4th respondent herein, under a
document …